Citation Nr: 0811940
Decision Date: 04/10/08 Archive Date: 04/23/08
DOCKET NO. 07-26 602 ) DATE
)
)
On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in San Juan, the Commonwealth of Puerto
Rico
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Veteran represented by: Joseph R. Moore, Attorney at
Law
ATTORNEY FOR THE BOARD
Heather J. Harter, Counsel
INTRODUCTION
The veteran served on active duty from October 1948 to
October 1949 and from August 1950 to June 1954. He was
awarded the Combat Infantryman Badge, among other
decorations.
In a January 2008 ruling, the Board of Veterans' Appeals
(Board) granted a motion to advance this appeal on the
Board's docket due to the veteran's advancing age.
In a March 2008 communication, the veteran's attorney
requested that the Board stay consideration of the veteran's
appeal for ninety days. No explanation as to his reason for
requesting a stay was provided, however. In light of the
advance on the docket granted in January 2008 and the remand
which is required for the reasons explained below, the Board
finds, however, that we need not address the attorney's
request for a stay. No prejudice will accrue to the
veteran's appeal, as no final disposition is reached below.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action on his part is required.
REMAND
The veteran is seeking service connection for PTSD. This
benefit was denied by the RO on the basis that although the
medical evidence includes multiple diagnoses of other
psychiatric disorders, no physician had given the veteran a
diagnosis of PTSD. After the RO had issued the rating
decision denying the benefit and the subsequent Statement of
the Case, however, the veteran's attorney submitted a medical
record dated in October 2007 which reflects a diagnosis of
PTSD. No waiver of RO review of this new evidence has been
received, however. The Board is prohibited from performing
an initial review of new, pertinent evidence absent such a
waiver from an appellant. See Disabled American Veterans v.
Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
As this new medical evidence can only be considered material
to the veteran's appeal, and as it has not been reviewed by
the RO in connection with an adjudication of his claim, the
appeal must be returned to allow for such consideration.
Additionally, it appears that the veteran may receive regular
VA medical treatment, as he is eligible for such as a VA
pension recipient, and the record contains some VA treatment
reports. The most recent of these is a VA hospitalization
report dated in August 2006. Any VA medical records are
deemed to be constructively of record in proceedings before
the Board and should be obtained prior to further review of
the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following actions:
1. The RO should obtain all records of
VA inpatient and outpatient medical
treatment afforded to the veteran
subsequent to August 2006 for inclusion
in his claims file.
2. The veteran/his representative should
be asked to identify those places at
which the veteran has received treatment
or been evaluated for PTSD, and with any
necessary assistance, an attempt to
obtain records of this, including from
Carlos A. Aviles, MD. P.O. Box 5000-456,
San German, Puerto Rico 00683, should be
made.
3. After reviewing the additional
evidence, the RO should perform any
additional evidentiary or procedural
development which may become apparent
(including examining the veteran) prior
to re-considering the veteran's claim for
entitlement to service connection for
PTSD. If the benefit sought on appeal
remains denied, the veteran and his
attorney should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).